Stancu v. Hyatt Corporation/Hyatt Regency Dallas

Filing 119

MEMORANDUM OPINION AND ORDER: The Court GRANTS Defendant Hyatt Corporation's fee application [Dkt. Nos. 96 & 97] and ORDERS Plaintiff Johns Stancu to pay Hyatt its reasonable attorneys' fees incurred in opposing his motion to compel Hyatt's responses to certain of his requests to produce documents under Federal Rule of Civil Procedure 34 [Dkt. Nos. 70, 71, 75, 76, & 77] in the amount of $3,535.30. (Ordered by Magistrate Judge David L. Horan on 10/18/2018) (zkc)

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
JOHN STANCU,
Plaintiff,
V.
HYATT CORPORATION/HYATT
REGENCY, DALLAS,
Defendant.

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No. 3:17-cv-675-S-BN
(Consolidated with:
No. 3:17-cv-2918-L)

MEMORANDUM OPINION AND ORDER
This action filed by a plaintiff proceeding pro se raising claims of employment
discrimination has been referred to the undersigned United States magistrate judge
for pretrial management under 28 U.S.C. § 636(b). See Dkt. Nos. 9 & 86.
Defendant Hyatt Corporation has filed a fee application, see Dkt. Nos. 96 & 97,
pursuant to the March 22, 2018 Order Regarding Rule 37(a)(5)(B) Reasonable
Expenses, see Dkt. No. 91. Plaintiff John Stancu has filed a response opposing the
application. See Dkt. No. 98. And Hyatt has filed a reply brief. See Dkt. No. 101.
For the reasons explained below, the Court GRANTS Hyatt’s application.
Applicable Background
On February 14, 2018, the Court denied Plaintiff John Stancu’s motion to
compel Defendant Hyatt Corporation’s responses to certain of his requests to produce
documents under Federal Rule of Civil Procedure 34 [Dkt. No. 81] (the “Second MTC”).
That order noted that Federal Rule of Civil Procedure 37(a)(5)(B) provides in
pertinent part that, “[i]f the motion [to compel] is denied, the court may issue any

protective order authorized under Rule 26(c) and must, after giving an opportunity to
be heard, require the movant, the attorney filing the motion, or both to pay the party
... who opposed the motion its reasonable expenses incurred in opposing the motion,
including attorney’s fees,” “[b]ut the court must not order this payment if the motion
was substantially justified or other circumstances make an award of expenses unjust.”
FED. R. CIV. P. 37(a)(5)(B); accord De Angelis v. City of El Paso, 265 F. App’x 390, 398
(5th Cir. 2008).
The Court therefore granted Stancu until March 7, 2018 to file a response
explaining why the Court should not enter an order requiring him to pay Hyatt, as
required by Rule 37(a)(5)(B), the expenses, including attorneys’ fees, that Hyatt
incurred in drafting and filing its Response to Plaintiff’s Motion to Compel [Dkt. No.
79]. No response was filed. Hyatt did, however, file a timely reply in support of an
award of expenses under Rule 37(a)(5)(B), see Dkt. No. 90.
After Hyatt filed its reply on March 21, 2018 and the Court entered the March
22, 2018 fee order, Mr. Stancu filed Federal Rule of Civil Procedure 72(a) objections to
the order denying the Second MTC [Dkt. No. 81] and the related fee order [Dkt. No.
91]. See Dkt. Nos. 92 & 93.
United States District Judge Karen Gren Scholer overruled his objections and
affirmed both orders. See Dkt. No. 94.
Legal Standards and Analysis
I.

Substantially Justified or Unjust
While Stancu did not file a response to the March 7, 2018 order, he claims in his
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May 7, 2018 response that he never received the March 2018 order and thus “was
never informed by the Court that the magistrate judge sanctioned” him. Dkt. No. 98
at 3. While the March 2018 order did not sanction him, because Mr. Stancu is
proceeding pro se, the Court will consider the arguments he sets out in his May 2018
response to determine whether the Second MTC was substantially justified or there
are other circumstances that make an award of expenses to Hyatt unjust.
Mr. Stancu first asserts that he purposefully limited the number of discovery
requests “to minimize costs for everybody, including the court. ... Yet, in spite of this
very limited discovery, [Hyatt] never answered completely nor truthfully to none of
[his] discovery requests.” Id. at 1; see id. at 2 (“In conclusion, plaintiff’s motion to
compel was caused by defendant’s noncompliance with basic discovery rules, not by
some fabricated ‘bad faith’ intentions on plaintiff’s part. The party sanctioned here
should be defendant, for vexatiously refusing to answer to basic discovery requests, not
a prose plaintiff standing up for his civil rights. Sanctioning plaintiff is simply a
travesty of justice.”). Mr. Stancu then accuses the Court of bias. See id. at 2.
Contrary to Mr. Stancu’s assertion, Hyatt complied with the discovery rules
applicable to the Rule 34(a) requests he made. As recounted in the order denying the
Second MTC,
[t]he Court agrees with Hyatt’s assessment that, through the Second
MTC, Stancu is moving to compel responses to the twenty Rule 34(a)
requests set out at Dkt. No. 75 at 2-6. Even accepting that Stancu’s
conclusory justifications for these requests, see id., carry his burdens
under Rules 26(b)(1) and 26(g)(1), Hyatt’s discovery responses and
objections and its response to the motion to compel, see Dkt. No. 79 at 415, specifically show – to the extent the requested documents were not
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produced to Stancu (most were) – that Stancu’s Rule 34(a) requests (or,
in some cases, the portions of those requests objected to) either are not
relevant, are not proportional, or are otherwise objectionable.
Generally speaking, Hyatt’s responses and objections to those
requests fall into five broad categories: (1) requests to which responsive
documents were produced without objection; (2) requests to which no
responsive documents exist; (3) requests to which Hyatt specifically
objected to the scope of the request but produced documents subject to
that objection; (4) requests that are not proportional; and (5) requests
aimed at establishing a “pattern and practice of discrimination and
retaliation.” Hyatt’s response to the motion to compel as to the first four
categories is unobjectionable.
As to the fifth category – concerning the three Rule 34(a) requests
Stancu claims are relevant because they are aimed at establishing a
“pattern and practice” (Request Nos. 10, 19, and 22) – Hyatt is generally
correct that the United States Court of Appeals for the Fifth Circuit has
held that the “pattern-or-practice method of proof [is] not available in
private, non-class action lawsuits.” Frank v. Xerox Corp., 347 F.3d 130,
136 (5th Cir. 2003) (characterizing the holding of Celestine v. Petroleos de
Venezuella SA, 266 F.3d 343, 355-56 (5th Cir. 2001), abrogated on other
grounds by Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002)).
Stancu v. Hyatt Corp./Hyatt Regency Dallas, Nos. 3:17-cv-675-L-BN & 3:17-cv-2918-LBN, 2008 WL 888909, at *5 (N.D. Tex. Feb. 14, 2018) (concluding that, while “some
Rule 34(a) requests in a non-class action lawsuit aimed at the pattern-or-practice
method of proof may satisfy Rules 26(b) and 26(g),” Mr. Stancu’s “pattern-or-practice
requests are neither narrowly crafted nor reasonably calculated to obtain evidence to
prove his claim” (citation omitted)).
The Court cannot therefore find that Mr. Stancu has shown (1) that filing the
Second MTC was substantially justified – that is, “there is a ‘genuine dispute’” as to
the appropriateness of the Second MTC or that “reasonable people could differ as to”
the need to move to compel when faced with Mr. Stancu’s requests and Hyatt’s
responses, Pierce v. Underwood, 487 U.S. 552, 565 (1988) (internal quotation marks
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omitted) – or (2) that it otherwise would be unjust to award expenses.
II.

Fee Amount
“This Court uses the ‘lodestar’ method to calculate attorney’s fees.” Heidtman

v. Cnty. of El Paso, 171 F.3d 1038, 1043 (5th Cir. 1999) (citing Fender v. Zapata
Partnership, Ltd., 12 F.3d 480, 487 (5th Cir. 1994)); Saizan v. Delta Concrete Prods.,
Inc., 448 F.3d 795, 800 (5th Cir. 2006). The lodestar is calculated by multiplying the
number of hours an attorney reasonably spent on the case by an appropriate hourly
rate, which is the market rate in the community for this work. See Smith & Fuller,
P.A. v. Cooper Tire & Rubber Co., 685 F.3d 486, 490 (5th Cir. 2012). “A reasonable
hourly rate is the prevailing market rate in the relevant legal community for similar
services by lawyers of reasonably comparable skills, experience, and reputation.”
Norman v. Hous. Auth. of City of Montgomery, 836 F.2d 1292, 1299 (11th Cir. 1988)
(citing Blum v. Stenson, 465 U.S. 886, 895-96 n. 11 (1984)). The relevant legal
community is the community in which the district court sits. See Tollett v. City of
Kemah, 285 F.3d 357, 368 (5th Cir. 2002).
The party seeking reimbursement of attorneys’ fees bears the burden of
establishing the number of hours expended through the presentation of adequately
recorded time records as evidence. See Watkins v. Fordice, 7 F.3d 453, 457 (5th Cir.
1993). The Court should use this time as a benchmark and then exclude any time that
is excessive, duplicative, unnecessary, or inadequately documented. See id. The hours
remaining are those reasonably expended. See id. There is a strong presumption of the
reasonableness of the lodestar amount. See Perdue v. Kenny A., 559 U.S. 542, 552
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(2010); Saizan, 448 F.3d at 800.
After calculating the lodestar, the Court may either (1) accept the lodestar figure
or (2) decrease or enhance it based on the circumstances of the case, taking into
account what are referred to as the Johnson factors. See La. Power & Light Co. v.
Kellstrom, 50 F.3d 319, 324, 329 (5th Cir. 1995); Johnson v. Ga. Highway Express, Inc.,
488 F.2d 714, 717-19 (5th Cir. 1974), overruled on other grounds by Blanchard v.
Bergeron, 489 U.S. 87, 90 (1989). The Johnson factors are: (1) the time and labor
required; (2) the novelty and difficulty of the legal issues; (3) the skill required to
perform the legal service properly; (4) the preclusion of other employment by the
attorney as a result of taking the case; (5) the customary fee; (6) whether the fee is
fixed or contingent; (7) time limitations imposed by the client or other circumstances;
(8) the monetary amount involved and the results obtained; (9) the experience,
reputation, and ability of the attorneys; (10) whether the case is undesirable; (11) the
nature and duration of the professional relationship with the client; and (12) awards
in similar cases. See Johnson, 448 F.2d at 717-19; see also Saizan, 448 F.3d at 800.
Because the lodestar is presumed to be reasonable, it should be modified only in
exceptional cases. See Watkins, 7 F.3d at 457. Further, the lodestar amount may not
be adjusted due to a Johnson factor that was already taken into account during the
initial calculation of the lodestar, see Saizan, 448 F.3d at 800, and the lodestar
calculation may take into account several Johnson factors, see Black v. SettlePou, P.C.,
732 F.3d 492, 503 n.8 (5th Cir. 2013).
Additionally, a party seeking attorneys’ fees after successfully opposing a
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discovery motion may only recover for the time spent in preparing and prosecuting its
response to the discovery motion that was denied – that is, the “reasonable expenses
incurred in opposing the motion, including attorney’s fees.” FED. R. CIV. P. 37(a)(5)(B).
This includes time spent on additional briefing and any oral argument or hearing and
can include “‘fees on fees’ for the time expended in filing a motion for attorneys’ fees.”
Wysocki v. Dourian, No. 2:17-cv-333-JAD-NJK, 2017 WL 4767145, at *2 (D. Nev. Oct.
20, 2017); accord Schneider v. CitiMortgage, Inc., No. 13-4094-SAC, 2018 WL 3068172,
at *3 (D. Kan. June 21, 2018).
The Court recognizes that the analysis set forth above, and particularly the
interplay of the lodestar analysis and the Johnson factors, may have been called into
question. See Perdue, 559 U.S. at 552-53; S&H Indus., Inc. v. Selander, No.
3:11-cv-2988-M-BH, 2013 WL 6332993, at *2-*3 (N.D. Tex. Dec. 5, 2013). But, the
United States Court of Appeals for the Fifth Circuit, without comment or reference to
the United States Supreme Court’s decision in Perdue, has continued to utilize the
approach laid out by this Court. See Black, 732 F.3d at 502-03; but see In re Pilgrim’s
Pride Corp., 690 F.3d 650, 663-64 (5th Cir. 2012) (analyzing whether any changes
brought about by Perdue apply to bankruptcy attorneys’ fees calculations); but see also
In re ASARCO, L.L.C., 751 F.3d 291, 296 (5th Cir. 2014) (following Pilgrim’s Pride).
And, even more recently, the Fifth Circuit has rejected the argument “that
Perdue clearly disfavors applying the Johnson factors to determine a fee award and
instead requires the use of only the lodestar.” Combs v. City of Huntington, Tex., 829
F.3d 388, 393 (5th Cir. 2016). The Court of Appeals explained that
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[w]e agree that Perdue requires courts to first calculate the lodestar;
indeed, this has long been our practice. See, e.g., League of United Latin
Am. Citizens No. 4552 (LULAC) v. Roscoe Ind. Sch. Dist., 119 F.3d 1228,
1232 (5th Cir. 1997) (“The method by which the district court calculates
an attorneys’ fees award is well established. The district court first
calculates the ‘lodestar.’”). But Perdue does not, as Combs contends, make
it impermissible to then consider any relevant Johnson factors. Perdue
cautions against the sole use of the Johnson factors to calculate a
reasonable attorney’s fee but nowhere calls into question the use of
relevant Johnson factors to make this determination. Indeed, Perdue
expressly allows adjustments “in those rare circumstances in which the
lodestar does not adequately take into account a factor that may properly
be considered in determining a reasonable fee.” 559 U.S. at 554, 130 S.
Ct. 1662.
....
And though the lodestar is presumed reasonable, it may be adjusted
where it “does not adequately take into account a factor that may be
properly considered in determining a reasonable fee.” Perdue, 559 U.S. at
554, 130 S. Ct. 1662. .... Perdue, consistent with the Court’s frequent
pronouncements, explains that lodestar enhancements are to be rare. ....
In sum, the district court should begin by calculating the lodestar:
the reasonable hours expended multiplied by a reasonable rate. The
district court may then determine whether any other considerations
counsel in favor of enhancing or decreasing the lodestar. In light of the
“strong presumption” that the lodestar represents a sufficient fee,
enhancements must necessarily be rare. Perdue, 559 U.S. at 553-54, 130
S. Ct. 1662.
Id. at 393-95.
Perdue, then, did not change the landscape of calculating attorneys’ fees awards
in the Fifth Circuit. Accordingly, the analysis below will take into account the
necessary factors when determining the appropriate amount of attorneys’ fees to be
awarded under Rule 37(a)(5).
Hyatt’s application requests an order requiring Mr. Stancu to pay its fees in the
amount of $3,535.30 as sanctions under Rule 37(a)(5) on its opposing the Second MTC.
See Dkt. No. 96 at 1.
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The application is supported by the Declaration of John Jansonius, which
incorporates his firm’s records. See Dkt. No. 97. Mr. Jansonius declares that he is a
partner in the labor and employment section of Jackson Walker LLP, is board certified
in labor and employment law by the Texas Board of Legal Specialization, and has been
licensed to practice law since 1980.
He declares that, to oppose the Second MTC, Hyatt incurred attorneys’ fees in
the amount of $3,535.30 – for 0.7 hours of work performed by Mr. Jansonius (at a rate
of $565 per hour); 9.4 hours of work performed by Davis Schlottman, an associate at
Jackson Walker (at a rate of $265 per hour); and 4.7 hours of work performed by Terri
Salter, a paralegal at Jackson Walker (at a rate of $144 per hour).
While Mr. Jansonius’s billing rate in this case was $565 per hour, Hyatt points
out in the fee application that he “billed very little time in responding to [the Second
MTC]” and that, “[t]aking into account Mr. Schlottman’s time and rate, the blended
hourly rate for attorney time in responding to [the Second MTC] is approximately
$288.53 per hour.” Dkt. No. 96 at 4. Mr. Jasonius further declares that, “[b]ased on my
knowledge of the legal market in the Dallas area, the hourly rates of myself, Mr.
Schlottman, and Ms. Salter in responding to [the Second MTC] are reasonable, usual,
and customary for attorneys of similar experience at firms of similar size and caliber
to that of Hyatt’s counsel.” Dkt. No. 97-1. ¶ 8.
The billing records Mr. Jasonius submitted reflect the work that the attorneys
and the paralegal performed, and those records include a narrative description of the
work done and the number of hours that it took to complete the work. See id. at 3-4.
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The Court has carefully reviewed these records and finds that the 14.8 total
hours that Hyatt attributes to corresponding and reviewing files to prepare for and
then briefing, editing, and filing the response to the Second MTC are reasonable and
necessary and not excessive, duplicative, or inadequately documented and were
therefore reasonably expended for the tasks for which the Court has determined that
Hyatt should be awarded its attorneys’ fees.
The Court further finds that the hourly rates are reasonable and within the
market rate for attorneys and legal staff handling this type of litigation in the Dallas
area – particularly considering that the attorney work was predominantly performed
by the junior attorney defending the case.
The Court therefore finds the appropriate lodestar here to be calculated as 0.7
hours at $565 an hour plus 9.4 hours at $265 an hour plus 4.7 hours at $144 an hour,
for a total of $3,535.30. While the Court has considered the Johnson factors, the
lodestar is presumed to be reasonable, which means it should only be modified in
exceptional cases. Hyatt does not seek an enhancement of his attorneys’ fees. And the
Court determines that no enhancement is warranted under the circumstances and that
there are no other exceptional circumstances.
Conclusion
The Court GRANTS Defendant Hyatt Corporation’s fee application [Dkt. Nos.
96 & 97] and ORDERS Plaintiff Johns Stancu to pay Hyatt its reasonable attorneys’
fees incurred in opposing his motion to compel Hyatt’s responses to certain of his
requests to produce documents under Federal Rule of Civil Procedure 34 [Dkt. Nos. 70,
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71, 75, 76, & 77] in the amount of $3,535.30.
SO ORDERED.
DATED: October 18, 2018
_________________________________________
DAVID L. HORAN
UNITED STATES MAGISTRATE JUDGE

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